D.M.M. v. H.R.M., (2009) 338 Sask.R. 272 (QB)

• Judge: Sandomirsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 20, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 338 Sask.R. 272 (QB);2009 SKQB 304

D.M.M. v. H.R.M. (2009), 338 Sask.R. 272 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JL.101

In The Matter Of a Hearing under The Child and Family Services Act

And In The Matter Of R.M., born [XXX], 2000, R.M., born [XXX], 1995, and M.M., born [XXX], 1992

D.M.M. (petitioner) v. H.R.M. (respondent)

(2007 F.S.M. No. 4; 2005 F.L.D. No. 139; 2009 SKQB 304)

Indexed As: D.M.M. v. H.R.M.

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Sandomirsky, J.

July 20, 2009.

Summary:

A mother sought custody of the parties' three children and child and spousal support under the Children's Law Act. The mother was granted interim sole custody and the father was ordered to pay interim child and spousal support. The Minister of Social Services apprehended the children from the mother on the basis that they were in need of protection and placed them with their maternal grandmother. The Minister sought an order declaring the two younger children to be in need of protection and placing them with their father with conditions for supervision for six months. The protection application and family law proceeding were consolidated. The maternal grandmother was declared to be a person of sufficient interest in the proceedings and requested that the two younger children remain with her.

The Saskatchewan Court of Queen's Bench found the two younger children to be in need of protection. Given the mother's prolonged history of illness and lack of progress, coupled with a lack of a home and income, the mother was not currently able to care for the children with the consequence that the children continued to be in need of protection. The children were placed with their father with conditions for supervision for one year. The mother (subject to her doctor certifying that she was in good health and capable of parenting) and maternal grandmother were granted specified unsupervised access. The court found that the mother had no current means to pay child support and lowered monthly spousal support payable to the mother from $1,700 to $850.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2328

Maintenance of wives and children - Maintenance of wives - Effect of wife's ability to work - [See Family Law - Topic 2329 ].

Family Law - Topic 2329

Maintenance of wives and children - Maintenance of wives - Considerations - The parties began cohabiting in 1991 and finally separated in 2004 - They had three children - In 2006, the father was ordered to pay interim monthly child support of $1,937 and interim monthly spousal support of $1,700 based on an imputed annual income of $109,000 - Child support was suspended - In December 2007, the Minister of Social Services apprehended the children from the mother on the basis that they were in need of protection and placed them with the maternal grandmother - The Minister successfully applied to temporarily place the children with the father - At issue was the mother's entitlement to spousal support - She had no home, no income and a prolonged history of mental illness - The Saskatchewan Court of Queen's Bench lowered monthly spousal support payable to the mother from $1,700 to $850 - The father had the burden and costs of child care - The mother had not made any significant progress to address her mental health issues and accept responsibility for her future health and well-being - The court was aware of the responsibility placed upon a former spouse to assist with financial support, in priority to the province or state - However, it recognized that the mother had a corresponding responsibility to work towards achieving financial independence - At some point the father had to be allowed to move forward in his life without the additional burden of paying spousal support of such a significant amount that it compromised the father's own ability to meet his familial obligations and enjoy a measure of financial independence - See paragraphs 122 and 123.

Guardian and Ward - Topic 814

Public trustee or guardian - Appointment - Child in need of protection - Friendly or departmental supervision - The Minister of Social Services apprehended three children from a mother on the basis that they were in need of protection and placed them with their maternal grandmother - The mother suffered from, inter alia, a bi-polar disorder and had been hospitalized - The Minister sought an order declaring that the two younger children (boys, aged 14 and almost 9) were in need of protection and placing them with their father with conditions for supervision for six months - The father had been estranged from the children for three years due in part, to the mother's actions - He had re-engaged with the children for the past year - The maternal grandmother (age 59) was declared to be a person of sufficient interest in the proceedings and requested that the two younger children remain with her - She argued that the status quo had been established while the children were with her for the past two years - A placement with the father would require the children to move away from family, friends and their schools - The older child wished to live with the mother, or, alternatively, the grandmother, but did not want to be separated from his brother - The Saskatchewan Court of Queen's Bench found the two younger children to be in need of protection - Given the mother's prolonged history of illness and lack of progress, coupled with a lack of a home and income, the mother was not able to care for the children - The children were placed with their father with conditions for supervision for one year - The father was better positioned to assume the long term care of the youngest child - The father deserved an opportunity to assume responsibility for the children - There was a history of significant conflict between the maternal grandmother and mother and also the father - If the children remained with the grandmother, that conflict would probably continue - The maternal grandmother and the mother (subject to her doctor certifying that she was in good health and capable of parenting) were granted specified unsupervised access - See paragraphs 95 to 120.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child in need of protection - Considerations (incl. best interests of child) - [See Guardian and Ward - Topic 814 ].

Guardian and Ward - Topic 817

Public trustee or guardian - Appointment - Child in need of protection - Temporary appointment - [See Guardian and Ward - Topic 814 ].

Guardian and Ward - Topic 818.5

Public trustee or guardian - Appointment - Child in need of protection - Considerations - Separation of siblings - [See Guardian and Ward - Topic 814 ].

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - [See Guardian and Ward - Topic 814 ].

Cases Noticed:

M.B.D. et al. v. Saskatchewan (Minister of Social Services), [2002] 10 W.W.R. 540; 221 Sask.R. 180; 2002 SKQB 308 (Fam. Div.), dist. [para. 101].

L.P. et al. v. S.P. et al. (2006), 287 Sask.R. 228; 2006 SKQB 478 (Fam. Div.), refd to. [para. 103].

S.H. and W.H. v. Saskatchewan et al. (1995), 138 Sask.R. 184 (Q.B. Fam. Div.), refd to. [para. 104].

A.M. v. L.R.P. (1995), 14 R.F.L.(4th) 267 (Sask. Q.B.), refd to. [para. 107].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 123].

Counsel:

Andrew K. Svenson, for the petitioner;

Jeffery W. Deagle, for the respondent;

Bruce K. Campbell, for C.M.;

Darcia G. Schirr, Q.C., for the Minister of Social Services.

These applications were heard by Sandomirsky, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following judgment on July 20, 2009.